The use of technology cannot be lowered to just a vehicle which has no significance in the authenticity of the final vote, the Supreme Court ruled on Wednesday.
The majority judges found that the application of technology in the electoral process was meant to reassure Kenyans that the final result was not manipulated.
The judges based this verdict on the Kriegler Commission report which found that the results manipulation in Kenya would only be cured by use of ICT in the voting process.
The judges found that although technology was used, there was little evidence for them to believe that the final results were a reflection of the will of the people.
Justices David Maraga, Philomena Mwilu, Isaac Lenaola, and Smokin Wanjala said defiance by IEBC to allow scrutiny of its technology raised doubts whether there was hacking or manipulation of the results which were relayed to the national tallying centre.
“If IEBC had nothing to hide it would have readily provided access to ICT logs and servers to disprove the petitioner's claim. But what did IEBC do with it? It contemptuously disobeyed the court orders in these very critical areas,” they said.
They ruled that in the 2013 election, technology did not work well but the IEBC had time to prepare well since 2016 when a joint select committee of Parliament discussed and recommended the exclusive use of technology in elections.
On electronic transmission of results, the court raised concerns about the constant 11 per cent difference between Uhuru Kenyatta and Raila Odinga, ruling that it showed a deliberate scheme to interfere with the results.
“On consideration of the affidavits filed by the petitioner and the respondents, we find that the electronic transmission of results was fundamentally flawed. The electronic transmission had no security, transparency, security, or verifiability,” the court ruled.
The judges also dwelt on the use of 4G and 3G networks as part of transmitting results electronically, saying the electoral commission had enough time to ensure all networks were working.
According to them, IEBC was under regulation 22 of the Election Technology Act required to avail a consortium of network providers 45 days before elections, but were surprised when two days to election the commission released a list of areas they said there was no network coverage.
They judges added that even those areas had good road networks which would have enabled the presiding officers to drive a few minutes to find areas of sufficient networks to relay the results.
Justices Njoki Ndung'u and Jackton Ojwang, however, in a dissenting opinion, ruled that the use of technology would not be sole determinant of the authenticity of the election process.
Justice Ndung'u said technology was meant to complement the manual election process.
She ruled that just as in football, there was a need to adopt more technology in order to enhance certainty.
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Ndung'u found that all the experts, even those of the court, could not give a sound opinion on the use of technology.
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